On 4 August 2016, White J gave some guidance in relation to circumstances in which particulars should be sought, and when pleading should be struck out: In the matter of Cougar Mining Group Pty Ltd [2016] NSWSC 1050.

In determining the matter, his Honour made the following observation, which appears to be lost on many litigation practitioners still:

“Pleadings play an important function in identifying the issues in the proceedings and the case that the defendants are required to meet. In general, I am not sympathetic to applications to strike out pleadings. Nor am I sympathetic to wide-ranging requests for particulars. In Verner v Giannaros [2016] NSWSC 242 I referred to what Martin CJ said in Barclay Mowlem Construction Pty Limited v Dampier Port Authority [2006] WASC 281 (at [7]), namely that:

“… provided a pleading fulfils its basic functions of identifying the issues, disclosing an arguable cause of action or defence, as the case may be, and appraising the parties of the case that has to be met, the Court ought properly be reluctant to allow the time and resources of the parties and the limited resources of the Court to be spent extensively debating the application of technical pleadings rules that evolved in and derive from a very different case management environment.”

The case concerned proceedings that had been commenced by summons, that had already been pleaded and then re-pleaded a number of times. His Honour dealt with the third or fourth “evolution” of the pleading,  but, given that the defendants were seeking costs incurred in the proceedings to date as having been wasted, his Honour found it necessary to  consider how the pleading had evolved: [4]

The defendants were seeking orders that the plaintiff provide additional particulars of certain paragraphs of the pleading, and that numerous other paragraphs be struck out: [1]

After a thorough analysis of the pleading, His honour concluded at [50]:

“This pleading singularly fails to meet the objects of the pleading. It does not enable the defendants to know the case they have to meet”

 And then at [54]:

“The defendants are not in a position on the present state of the pleadings to know what case they have to meet. I think this is a deplorable state of affairs. Contrary to the submissions made by counsel for the plaintiff it is not a state of affairs attributable to the defendants.”

In relation to a criticism made by the plaintiff of the defendants’ request for particulars, his Honour held at [57]:

“…. It is true that they were extensive but I think they were justified, having regard to the deficiencies of the pleading. Having said that, I would not in any way seek to encourage solicitors or counsel embarking upon detailed requests for particulars. But in this case it was and remains unclear exactly what it is that the plaintiffs are contending for.”

His Honour then struck out the pleading, with liberty given to the plaintiff to re-plead.  He also ordered that the plaintiff pay the defendants’ costs of their multiple appearances, including of the motion to strike out the pleading, as well as the costs thrown away by reason of the filing of the pleading. That costs order was made payable forthwith pursuant to r 42.7 of the Uniform Civil Procedure Rules, on the basis that his Honour found “reason to fear that having regard to the way the plaintiff has conducted its case to date that the resolution of these proceedings might take some time”: [62].

This case is illustrative of the fact that courts are becoming less and less tolerant of wide ranging request for particulars, and to inadequate pleadings – influenced no doubt by the imperatives of the “just, cheap and quick”  approach to litigation now in vogue.